Duncan research files of
Mary Ann (Duncan) Dobson
the Genealogy Bug
Last revised July 7, 2009
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Duncan research files of |
1850 Washington Co. TX Census (and from Lucille Mehrkam 1983)
Pg.300, #245-245, B.P. DUNCAN (m) 40 KY farmer $300
G. (f) 22 SC
(MAD: Brice P. Duncan & wife Emma M., Daviess Co. KY 1828 deed B-398; Brice Duncan the son of Samuel Duncan and Sally Jones, from info of Patrick Hays 8/2000; B.P. Duncan had records in early Houston or Harris Co. TX)
Pg.301, #258-258, G.J. DUNCAN (m) 40 KY blacksmith $1800
C.R. (m) 30 KY farmer $2000
(MAD: values as given; George J. Duncan; Charles R. in 1860 Milam Co. TX census)
1860 Washington Co. TX Census (pg.162 & 225 also from Roy Hall 9/1986)
Brenham
Pg.145, #58, Thomas BAKER 54 GA farmer $7500-$3800?
Anna 52 GA
Anna 19, Lafayette 12 GA
Blake (m) 6 GA
John PERKINS 35 GA brick maker $0-$500
John DUNCAN 20 KY overseer
Pg.155, #325, P.H. DUNCAN (m) 25 KY farmer $2000-$500
Mary 27 TX
Sarah 3, Mary 2 TX
(MAD: Pleasant H. Duncan, perhaps son of George Duncan of 1850 Russell Co. KY census)
Independence
Pg.162, #179, Geo. DUNCAN 49 KY blacksmith $4000-$3550
Charles 7, John 5 TX
Mary J. 4?/12 (6?/12) TX
Brenhan/ Chappell Hill
Pg.225, #1162, G.W. DUNCAN (m) 45 TN farmer $1000-$4500
Sallie 34 SC
John 12, Thomas 8 TX
Sallie 6, Eliza 3 TX
1870 Washington Co. TX Census (pg.286 also from Patrick Hays 7/1999)
Precinct 2
Pg.1, #10-10, SMITH, John 60 SC farmer $0-$500
Sallie 58 SC keeping house
CADE, Allie (f) 30 SC "without"
SMITH, Jeff T. (m) 21 MS farmer
Horace (m) 17 TX farmer
CADE, Neddie (m) 8, Annie 1 TX at home
DUNCAN, Fannie 11 TX at home
Town of Branham, Precinct 2
Pg.57, #76-77, LOCKETT, Henry E. 32 VA dry goods mercht. $10,000-$500
Frances C. (f) 22 NC keeping house
BASS, Eliza O. 16 NC attending school
DUNCAN, John 1 TX at home
Precinct 3
Pg.89, #133-133, CLEMMONS, Ira (m) 58 VA farmer $6000-$600
Sarah J. 42 IRE keeping house, parents of foreign birth
Mary T. 23 TX "without"
George Ann (f) 19 TX "without"
Martha C. 17, Nannie (f) 15 TX attending school
Jefferson T?. 9, Hugh P?. 3, Allice G. 1 TX
DUNCAN, John F. 16 TX farmer
Beat 3, Brenham P.O.
Pg.245, #1008-1008, ROBERTSON, H.O. (m) 34 TN farm $5000-$300
S.J. (f) 25 TN house keeping
F.S. (m) 1 TX at home
DUNKIN, Lizzie (f) 9 TX
Subdivision B No. 3
Pg.252, #1119-1119, DUNKIN, G.J. (m) 59 KY blacksmith $7500-$400
Elizabeth 42 KY at home
C.J. (m) 17, J.S. (m) 15 TX farm laborers
M.E. (f) 10 TX at home
E.J. (f) 9, W.F. (m) 5 TX
DALLIS, Elizabeth 73 PA "without occupation"
Pg.286, #1623-1623, DUNCAN, Gabrilla (f) 42 SC farming $1000-$500
J.D. (m) 9 TX attending school
Brice (m) 4 TX
DAGGER?, Jerry (m) 21 AL farm laborer
Alice 21 AL keeping house
TUTTLE?, Jerry? (m) 25 AL MULATTO farm laborer
HRED?, Ja. M. (m) 36 AL farm laborer
Betty?? (Molly??) (f) 24 MS house keeping
Andrew 4 MS
FLANDER?, Susan 25 MS "without"
(MAD: ink is blurred in some of this household)
(PH & MAD: widow of Brice P. Duncan)
1880 Washington Co. TX Census (pg.267A also from Patrick Hays 7/1999)
District 149, pg.14, SD 5, ED 149
Pg.219B, #125-127, DUNCAN, Charles J. 36 MO mar. farmer TN TN
Rachel 28 TX wife keeping house AR MO
J. Thomas 12 TX son laborer MO TX
(MAD: 1870 Denton Co. TX census)
District 150, pg.14, SD 5, ED 150
Pg.239B, #128-130, TURNER, Allen 47 SC BLACK mar. farming SC SC
Louisa 38 TX BLACK wife keeping house KY MO
Melvin 14 TX BLACK son works on farm SC TX
Rebecca 12, Martha 9 TX BLACKS daus. SC TX
Rachele 8, Elizabeth 5 TX BLACKS daus. SC TX
Mary 2 TX BLACK (blank) SC TX
Peter 6/12 TX b.Dec. BLACK (blank) SC TX
Pg.239B, #129-131, DUNCAN, Robert 18 TX BLACK stepson (blank mar/sing/wid), works on farm TX TX
TURNER, Wade (m) 27 TX BLACK (blank mar/sing/wid) farmer SC TN
Julia 23 TX BLACK wife (blank mar/sing/wid) (blank occup.) TX TX
Wade 5 TX BLACK son TX TX
Clarence 4 TX BLACK son TX TX
Emily 2 TX BLACK dau. TX TX
Independence, pg.37, SD 5, ED 151
Pg.267A, #312-328, DUNCAN, Gabrilla (f) 51 SC widow keeping house, blind VA NC
Jeff D. 15 TX son single farming KY SC
Brice (m) 14 TX son single works on farm, blind KY SC
Washington Co. TX Probate Records; Index to final record, Books A-Z, 1 & 2 (FHL film 956,506; SLC 6/2009)
No Duncan
Washington Co. TX Index to Probate Minutes 1837-1917 (FHL film 956,496 item 2; SLC 6/2009)
E-252: Duncan, Mary and husband, community, adm/exec/gdn P.H. Duncan
Washington Co. TX Probate Minutes, Vol.E 1861-1868 (FHL film 956,499; SLC 6/2009)
E-252: May 22, 1863, John M. Walker, N. Kavinaugh, Jno. H. Davidson and Daniel Eddins appointed to appraise and value the community property owned by P.H. Duncan and his deceased wife Mary Duncan and make return to June 1863 term of court.
E-253/254: Community estate of P.H. Duncan and decd. wife Mary Duncan, filed June 1, 1863, inventory filed. P.H. Duncan to file bond for $2500 and account to legal heirs for their interest.
E-510: Estate of P.H. and M.J. Duncan, June term 1866, release and receipt to E.C. Miller admin. Administration of estate of William Miller decd, who was admin. of estate of M.J. Duncan decd. and the community estate of P.H. and M.J. Duncan.
(MAD: Duncan heirs not named.)
Washington Co. TX Deed Indexes 1837-1941 (SLC 6/2009)
Direct (grantor) C-D, Du on pg.486-524 (FHL film 968,763)
8-48: Duncan, B.P. et al to Curry, B.P., Apr. 8, 1879
19-479: Duncan, B.P. to Kirk, L., Sept. 17, 1885
Quit 1920
Y-362: Duncan, C.D. et al to Carter, W.P. et al, Jan. 9, 1872, deed
1-81: Duncan, C.D. et al to Eldridge, J.C., May 6, 1873, deed
Next was 1927, not copied
O-364: Duncan, E. et al to Torpin, Sol, Apr. 28, 1856
1-81: Duncan, Elizabeth et al to Eldridge, Jno. C., May 6, 1873, deed
10-556: Duncan, E. et al to Eldridge, F.C., filing (bef. 1883) "not stated", deed
IJ-503: Duncan, Isaac to Cannon, Elizabeth, Mar. 31, 1851, deed
Q-655: Duncan, Geo. J. to Roberts, Ann E., May 19, 1859
S-526: Duncan, Geo. J. to Clay, T.T., Aug. 12, 1862
1-81: Duncan, G.J. et al to Eldridge, Jno. C., May 6,1873
8-48: Duncan, G. & B.P. to Curry, B.P., Apr. 8, 1879
8-168: Duncan, G.J. to Kahler, Jno, May 26, 1879
8-169: Duncan, G.J. to Gregg, Alex, May 26, 1879
10-543: Duncan, G.J. to Edward, Jno., Dec. 10, 1880
Quit 1927
W-332: Duncan, John to Fisher, Sam W., May 14, 1869
19-479: Dunkin, J.D. et al to Kirk, L., Sept. 17, 1883? (1885?)
P-574: Duncan, Mary et al to McIntyre, H.C., Nov. 2, 1857
Q-382: Duncan, Mary et al to Terry, J.L., Nov. 20, 1858
R-599: Duncan, Mary et al to Allcorn, T.J. Jr., Aug. 21, 1860
Y-362: Duncan, L.E. et al to Kennada, S.R. et al, Jan. 9, 1872
1-81: Duncan, L.E. et al to Eldridge, J.C., May 6, 1873
10-556: Duncan, L. et al to Eldridge, F.C., not stated (bef. 1881)
23-418: Decree, Duncan, L.E. to Luthke, E., Oct. 10, 1887
P-574: Duncan, Phillip et al to McIntyre, H.C., Nov. 2, 1857
Q-382: Duncan, Phillip H. et al to Terry, J.L., Nov. 20, 1858
R-599: Duncan, Phillip H. et al to Allcorn, T.J. Jr., Aug. 21, 1860
1-81: Duncan, P.J. et al to Eldridge, J.C., May 6, 1873
10-556: Duncan, P. to Eldridge, F.C., not stated (between 1874-1894)
no R-W Duncans
Reverse (grantee) C-D, Du on pgs.486-524 (FHL film 974,282, item 2)
M-62: Duncan, Brice from Hurkell, J.A. et al, Aug. 23, 1853
T-264: Duncan, B.P. et al from Alexander, Jno. Extr, Dec. 23, 1865
T-264: Duncan, B.P. et al from Crawford, J.D. Est., Dec. 23, 1865
T-420: Duncan, B.P. from Woodward, J.M., Feb. 21, 1866
Did not copy 1900's
H-390: Duncan, Geo. J. et al from Willis, Hollis, Oct. 30, 1848
11-374: Duncan, G.J. from Hunt, F.C., Mar. 31, 1881
19-478: Duncan, G. from Bishop, J.D., Sept. 17, 1885
B-384: Duncan, Jno. from Varrelman, J.D.G., July 2, 1838
B-387: Duncan, Jno. from Johnson, Jno. B. et al, July 2, 1838
B-387: Duncan, Jno. from Winburn, McHenry et al, July 2, 1838
B-389: Duncan, Jno. from Johnson, Jno. B. et al, July 2, 1838
B-390: Duncan, Jno. from Winburn, McH. et al, July 2, 1838
W-641: Duncan, Jno. from McHenry Winburn et al, Sept. 16, 1869
A-600: Duncan, Mary, from Allcorn, T.J. Jr., Aug. 21, 1860, B/S
S-684: Duncan, Mary from Miller, Weir (Wur?), Mar. 7, 1863, B/S
19-401: Duncan, L.E. from Dallas, W.A. et al, Aug. 4, 1885, deed
19-401: Duncan, L.E. from Sheriff Wash. Co., Aug. 4, 1885, deed
no P-W Duncans
"The Texas reports : Cases Argued and Decided in the Supreme Court of the State of Texas during the latter part of the Galveston term 1877 and embracing the cases decided during the Austin term 1877" by Terrell & Walker; Vol.47, pgs.343 to 357 (California State Law Library, Sacramento, 1/2004)
H. CLAY PLEASANTS v. MATTHEW DUNKIN; Supreme Court of Texas; 47 Tex. 343; 1877, Decided.
Appeal from Bastrop. Tried below before the Hon. J.P. Richardson.
On the 23d of January, 1872, H. Clay Pleasants, as administrator of the estate of John York, deceased, brought suit against Matthew Dunkin et al. and the heirs of said York, deceased, to obtain possession of 1476 acres of land in Bastrop county, patented to the heirs of George W. Davis, deceased. The petition alleged disseizin, use, and occupation by the defendants, and prayed for judgment for the land, for rent, and damages.
On March 28, 1872, the appellees, Dunkin and Clark, demurred generally and specially to plaintiff's petition, and urged a misjoinder of parties, in mingling in one suit, as defendants, the appellees, who were alleged to be wrong-doers and in possession of the land, with the heirs of John York, deceased.
On the 28th of March, 1872, the defendant Clark disclaimed any title to the land, but claimed to hold the same as tenant for his co-defendant Dunkin, and asked that all pleas and answers of said Dunkin be received as his also. On the same day, the defendant Dunkin answered. In his answer, he plead "not guilty," and the three, five, and ten years' statutes of limitation.
On the 24th of July, 1872, the defendants amended their answer, and pleaded in bar of plaintiff's right of action the matter which will be found referred to in plaintiff's bill of exceptions.
On July 30, 1873, the defendants filed another amended answer, denying everything which had been alleged by the plaintiff, especially denying that any land certificate was ever issued by the board of land commissioners of Washington county to George W. Davis, on the first day of January, 1839, or on any other day in 1839, or to the heirs of the said George W. Davis in the year 1839, or that the original bona fide certificate issued to the heirs of the said George W. Davis ever was located upon the land sued for by plaintiff.
The parties agreed that the plaintiff was the legal administrator of John York, deceased.
The patent attached as an exhibit to the petition recited that it was based on a certificate issued to heirs of George W. Davis, by the board of land commissioners of Washington county, on the first day of January, 1839.
The parties waived a jury, and submitted the cause to the court, who overruled defendant's demurrers, and rendered judgment in their favor against the plaintiff for costs, and dismissed his suit.
From this judgment, the plaintiff Pleasants appealed. His assignments of error were the negative of the positions assumed by the court below, as the same appears in plaintiff's bill of exceptions.
On the trial, the plaintiff proposed to introduce in evidence--
1. The patent to heirs of George W. Davis, as the same was copied in the exhibit to plaintiff's petition.
2. Transcript of proceedings in the matter of the estate of George W. Davis, deceased, in the Probate Court of Washington county.
3. Proces verbal from Dan. J. Toler, judge of probate of Washington county, to Robert A. Lott.
4. Deed from R. A. Lott to John York, plaintiff's intestate.
To the introduction of which the defendants, Dunkin and Clark, objected, for the following reasons:
"First. Because the patent filed in this cause, and upon which the plaintiff relies for title from the Government to recover the land sued for, shows upon its face that the certificate located upon the land in controversy, and upon which the patent issued, was another and different certificate from the one described in the deed or transfer offered in evidence, to wit, a certificate issued to the heirs of one George W. Davis, on the first day of January, 1839, all of which shows that the land involved in this suit was patented upon another and different certificate than the one described in the deed or transfer offered in evidence, and therefore not admissible in evidence to establish title in plaintiff to the land described in the patent made a part of his petition.
"Second. Because the said Dan. J. Toler, neither in his individual capacity, nor as judge of probate, had any right or authority to execute said deed or transfer, and that the same did not transfer or pass any title to the said R. A. Lott, and because said supposed deed or transfer was and is null and void, and irrelevant and inadmissible as evidence in this case for any purpose.
"Third. Because the original petition filed by the said William Pettus, in the Probate Court of Washington county, praying for letters of administration upon the estate of the said George W. Davis, shows upon its face affirmatively that the Probate Court of Washington county had no jurisdiction over the estate of the said George W. Davis, if, in truth, at the date thereof, the said Davis was dead; and because said original petition shows upon its face that said George W. Davis was not dead at the date of the granting of said letters of administration; and because the petition shows upon its face that said George W. Davis never was a resident or inhabitant of the said county of Washington.
"Fourth. The Probate Court of Washington county had no authority of law to order the sale of the certificate described in said deed or transfer; and for all the causes hereinbefore and hereinafter stated and set forth, said deed or transfer was and is null and void; and because the said William Pettus never was administrator of the estate of the said George W. Davis; because he never did execute any bond payable to the judge of probate, in accordance with the order of the court, and as the law then required; and because the certificate described in the deed or transfer never had been located upon the land described in plaintiff's petition, or any duplicate thereof; but the same is now in the district clerk's office of Washington county, as is shown by a certified copy, which is incorporated in the transcript from the Probate Court of Washington county, offered in evidence by the plaintiff.
"Fifth. Because the transcript from the County Court of Washington county, of the proceedings in the matter of the estate of G. W. Davis, deceased, discloses the fact that no counsel was appointed by the court to represent the absent heirs of said Davis, deceased, and that said absent heirs were at no time, nor in any way, represented in said proceeding, nor did said absent heirs, or any one of them, at any time, or in any manner, assent to said order of sale, nor did such absent heirs, or any one for them, at any time, or in any manner, assent to, ratify, or confirm said sale; all of which was contrary to the express provisions of the law for such cases made and provided.
"Sixth. Because no character of indebtedness was ever established by any one against the estate of said G. W. Davis, deceased, or presented to the pretended administrator, Pettus, for his allowance, or presented to the probate judge of Washington county for approval, in the manner and form prescribed by law; because there is no evidence in said deed or transfer, or otherwise, that the said William Pettus ever sold the certificate described in said deed or transfer, and because there is no legal evidence in said deed or transfer that the said R. A. Lott ever paid anything for said certificate, and said alleged deed or transfer is, therefore, a nudum pactum, if anything; because the said Dan. J. Toler had no authority to execute said deed or transfer, or to set forth that said William Pettus had acknowledged the receipt of two hundred dollars from the said R. A. Lott for the purchase-money of said certificate, and because said deed or transfer shows upon its face that it is not signed, and was not executed by the said William Pettus, or by his authority; because it is not such an instrument, when recorded, as makes constructive notice of title to the property described in it; because the administrator applied for, or demanded, a sale of the property in less than thirty days after his alleged appointment as administrator of the estate, when the law required him to wait thirty days after he was appointed, before he could demand a sale of property, --therefore said sale was and is void, and said deed or transfer pursuant thereto is void, and not admissible in evidence in this case to establish any right in this suit.
"Because the said Dan. J. Toler had no authority to adjudicate a title from the said William Pettus to the said R. A. Lott; because counsel for the absent heirs of G. W. Davis was not notified of the application for the sale, or of the sale having been made, and because said sale was not ratified or consented to by the counsel for the absent heirs, as the law in force at that time required.
"Defendants further object to the introduction of the patent, made an exhibit to plaintiff's petition, as evidence to support plaintiff's right to recover, because the patent purports to have been issued upon and by virtue of a certificate issued on the first day of January, 1839, while the record of the proceedings of the Probate Court of Washington county, offered in evidence by plaintiffs, show that the certificate petitioned to have been sold by the pretended administrator, William Pettus, was issued on the eleventh day of January, A. D. 1840, and that the said certificate has never been located and patented, but is now on file in the Probate Court of Washington county.
"Defendant objects to the introduction of the pretended deed from R. A. Lott to John York, because the same is incompetent as evidence to support the plaintiff's right to recover in this suit, for all the reasons assigned as grounds against the introduction of the deed from Dan. J. Toler to the said R. A. Lott, and for all the reasons assigned as grounds of objection to the introduction of the patent made an exhibit to plaintiff's petition."
The court below rejected said evidence, and adopted said reasons as the grounds of said rejection, and incorporated the same in plaintiff's bill of exception.
There is no affirmative evidence among the papers offered in evidence, that any inventory of the property of Davis was ever filed; that any debts had been proven up against his estate; or that any formal return of sale or confirmation of sale was ever made.
The proces verbal, under which Toler, the probate judge, undertook to convey the certificate belonging to the estate of Davis to Lott, was as follows:
"Republic of Texas, County of Washington. Be it remembered, that on the third day of March, one thousand eight hundred and forty, William Pettus, administrator of the succession of George W. Davis, late of the county of Washington, deceased, offered for sale at the door of the court-house of the town of Washington, between the hours of 10 a.m. and 4 p.m., in pursuance of a decree of the Probate Court of the said county of Washington, rendered at the January Term of said court last passed, and in pursuance with advertisements made according to law, the said William Pettus, administrator, offered for sale, for cash, the following property, belonging to the estate of the said George W. Davis, deceased, to wit, 'the headright certificate of the said George W. Davis for one third of a league of land, being No. 491, issued by the Board of Land Commissioners for the county of Washington; which said certificate was bid off by Robert A. Lott, at the price of two hundred dollars, that being the highest and best bid made for the same, and exceeding two thirds of the price at which the same was appraised: Now, therefore, know all men by these presents, that I, Daniel J. Toler, chief justice and judge of probate in and for the county aforesaid, for and in consideration of the sum of two hundred dollars, to the said William Pettus, administrator as aforesaid, in hand paid, receipt whereof the said William Pettus acknowledges, do hereby adjudicate the said certificate to the said Robert A. Lott, his heirs and assigns. To all of which, I, the said judge, certify, by signing this instrument, at office in Washington, with Robert Merritt and Samuel Patterson, witnesses, and affixing my private seal, having no seal of office, this fifth day of March, A. D. one thousand eight hundred and forty. Dan. J. Toler, [seal.] Witnesses: Judge of Probate. Robt. Merritt, Saml. Patterson."
It was proven up, on the 22d of July, 1858, before Samuel Lusk, the county clerk of Washington county, by A. Clampitt and G. W. Horton, who swore to the handwriting of Toler and the witness Merritt.
(MAD: headnotes and arguments of counsel omitted here)
(opinion) GOULD, Associate Justice. -- It is contended that the transcript from the Probate Court of Washington county shows on its face that the court had no jurisdiction over the estate of George W. Davis. The first ground on which this is claimed involves the proposition that, under the laws in force in January, 1840, the Probate Court of Washington county had no power to grant letters of administration on the estates of persons who were not "inhabitants of or resident in said county at the time of their decease." The 24th section of the act of December 20, 1836, "organizing the inferior courts and defining the power and jurisdiction of the same, (Hart. Dig., art. 252,) is as follows: "The chief justices of the County Courts shall be judges of probate for their respective counties; shall take the probate of wills; grant letters of administration on the estates of persons deceased, who were inhabitants of or resident in said county at the time of their decease; shall appoint guardians to minors, idiots, and lunatics; and, in conjunction with the associate justices, shall examine and settle the accounts of executors, administrators, and guardians; and said chief justices shall have full jurisdiction of all testamentary and other matters appertaining to a Probate Court within their respective counties." Conceding that, as an original question of the construction of this act, standing alone, it might well be questioned whether it did not limit the jurisdiction of the court as is claimed, we remark that, prior to the grant of administration on the estate of Davis, there had been other legislation inconsistent with such a construction.
In 1838, various restrictions on the appointment and action of administrators of estates of deceased soldiers or officers, "other than a citizen soldier, who was a citizen of Texas, in the full exercise of his rights as such at the time of his death," were enacted, impliedly recognizing the validity of administrations on the estates of soldiers, and of others not residents or citizens of the State. (Hart. Dig., arts. 984-990.) See also Hart. Dig., art. 269, which provides for the transfer of administrations theretofore pending before the primary courts to the Probate Courts where the deceased had his domicile at the time of his death, "or, if he had no fixed domicile, then to the clerk of the Probate Court where the deceased died or where the majority of the property of the deceased is situated." Taking these enactments into view, following what is believed to have been the contemporary and practical construction of the powers of the Probate Court, we hold, that that court had jurisdiction to grant letters on the estates of decedents who were not residents of the county at the time of their decease.
It is further urged that the petition for letters of administration shows that Davis was not dead, and that therefore the administration was void. The petition contained an averment that petitioner verily believed that Davis had departed this life, and was unquestionably sufficient to admit of proof of his death. Although it may appear that the petitioner, when his petition was filed, had no positive information of the death of Davis, it must be presumed that the court did not act without being satisfied of the fact. The validity of the administration certainly depends on the fact of death, but it does not depend on the positive knowledge of the petitioner of that fact. It is true that the petition states a case in which the court might have declined to act, but it must be presumed that inquiry was made, and that it was found that the belief of the petitioner was well grounded. It would be most unsafe to make the validity of the administration depend on the sufficiency of the petition, conducted, as administrations often were in this State, without legal advice; and we are of opinion that the transcript of the proceedings of the Probate Court of Washington county does not disclose any want of jurisdiction in that court.
Numerous objections were made to the validity of the order of sale of the certificate, some of which may be disposed of by the remark, that the certificate was not real estate, but was subject to be sold, as other personal property. The validity of the order of sale did not depend on the regularity of the bond, or the appearance, in the record of compliance with all of the regulations prescribed in the Civil Code of Louisiana. The courts of Louisiana, like the courts of Texas, hold that a bona fide purchaser is protected by the decree of a court which has jurisdiction. They hold also that the decree of sale would not be an absolute nullity by reason of the omission to appoint an attorney to represent absent heirs.
The ordinance of January 22, 1839, (Hart. Dig., art. 983,) decreed "that all proceedings relative to successions, matters of probate, et cetera, shall be regulated and governed agreeably to the principles and laws in similar cases in the State of Louisiana: Provided, That no judge shall act as administrator." The meaning of this proviso is evidently the same as if the proviso read, "no judge shall receive letters of administration." See Hart. Dig., art. 993, for a similar prohibition as to clerks. We see nothing in this proviso, nor in the act defining the time of administration and sheriff's sale, conflicting with articles 2600 and 2601 of the Civil Code of the State of Louisiana, as it was in force in 1839 and 1840, as follows: "Art. 2600. The judicial sale of succession property is made by the judge or clerk of the court to which this jurisdiction is specially confided. Art. 2601. The adjudication made and recorded by the judge or clerk of a court, is a complete title to the purchaser, and need not be followed by an act passed before a notary."
The conveyance, adjudication, or proces verbal, executed by the judge of probate to the purchaser, seems to be an effort to follow these articles of the Louisiana code. At the time of the sale, the act regulating the duties of Probate Courts, &c., (Hart. Dig., art. 995, et seq.,) had not yet gone into operation, as it had in the case of Hall v. Hall, 11 Tex. 526, in which a similar case was held invalid. As we understand the Louisiana civil code then in force, and the decisions of the Louisiana courts, such an instrument was the appropriate evidence of an administration sale, and, with the lights before us, we cannot hold that it was invalid.
There seems to be a discrepancy in the date of the certificate as given in the patent, and the date of the certificate issued to the administrator of Davis. This discrepancy constituted no valid objection to the admission of the patent in evidence. As the patent had been made an exhibit to the petition, there could be no variance. It was a question of fact, not affecting the admissibility of the patent, whether, notwithstanding the discrepancy in the date of the certificate, the patent did not refer to the same certificate which was issued to the administrator of Davis.
Because the court erred in excluding the various instruments of evidence offered by plaintiff, the judgment is reversed and the cause remanded.
Reversed and remanded.
Jefferson Co. KY Deed (from Jeannine Wright 11/1991)
80-219: 28 Feb. 1851, Washington Co. TX; George J. Duncan of said county sell to Henry Sanford Duncan of Jefferson Co. KY, my right and interest in 205 acres in Jefferson Co. KY, being the homestead of my father Charles Duncan decd, late of Jefferson Co. KY, for $1300; warranty bond for $2000 to defend title. Rec. 14 July 1851. Wit. G.S. Brooks, W.A. Higgins; ack. Washington Co. TX.
1894 "Memorial and genealogical record of southwest Texas : containing biographical histories and genealogical records of many leading men and prominent families" pub. by Goodspeed Brothers (Houston, TX, library book 976.4 M533; from Lucille Mehrkam 2/1984; and FHL book 976.4 D3mg; and from Denzil Mauldin)
Pg.301-2: J.T. DUNCAN. Among the leading attorneys of La Grange, [Fayette Co.] TX, is J.T. Duncan, a man of unquestioned integrity, and competent in his profession. To a thorough knowledge of the legal science, he joins the general culture derived from a varied and extended course of reading, and is skillful in the presentation of the most involved or intricate facts, and forcible in his manner of dealing with difficult and entangled subjects. He was born in Washington Co. TX in 1854, and is the son of George J. and Elizabeth (Dallas) Duncan, natives of Kentucky. This family was one of the earliest and most prominent ones of Virginia. The grandmother of our subject on the paternal side was a native of North Carolina, but the maternal grandparents were natives of Pennsylvania. The latter came to the Lone Star State in 1833, and settled near Independence, Washington Co. TX. In 1839 the father of our subject came to Washington County, and engaged in farming. He was a single man then, but married Miss Dallas in 1851, afterward residing in Washington County until 1880, when he moved to Milam County, where he died in 1893. He was in Summersville's campaign against the Mexicans in 1840, and proceeded as far as Laredo. This expedition was for the purpose of forever settling the boundary line between Mexico and Texas, and this body of hardy Texans suffered many hardships on this trip. At one time Mr. Duncan got lost from his command, and before reaching the main army suffered greatly. To his marriage were born five children. J.T. Duncan was educated in Baylor University, of Independence, graduating from that institution in 1877, and immediately afterward he came to La Grange, TX, where he entered the law office of Timmons & Brown. In June 1878, he was admitted to the practice of law in this state, and subsequently formed a partnership with R.J. Andrews, the same continuing until 1881, and was then elected to the office, his term expiring in 1882. Since that time he has not aspired to public positions. Mr. Duncan is attorney for the San Antonio and Arkansas Pass Railway Company, a position he fills to the entire satisfaction of all the people interested. Jan. 1, 1885, Mr. Duncan formed a partnership with Judge L.W. Moore, the style of the firm being Moore & Duncan. Judge Moore is one of the oldest and best known attorneys in the state, being ex-member of Congress and ex-judge of this profession, and is remarkably well adapted to the requirements of the same, and his strength lies in his great fairness and liberality, coupled with a keen discernment of motives behind actions.
Pg.326: Isaac W. Pitts born Pike Co, AL. 17 Oct. 1833 son of Jesse and Millie J. (Duncan) Pitts, natives of GA. His parents moved GA to AL, and married in AL. Moved to Texas in 1849 to Washington Co. later San Felipe to Bell Co. to Corgill Co.
1914 "History of TX and Texans" by Frank W. Johnson, Vol.1-5 (SUTRO book F386 J66 1914, CA State Library, Sutro Branch; and FHL book 976.4 H2j; and from Jeannine Wright 2/1992)
Vol.4 pg.1823: JOHN T. DUNCAN, practiced law in Texas more than 35 years, home at La Grange. His great-grandfather Coleman Duncan from Loudon Co. VA to Nelson Co. KY in 1792, the ancestor of the branch now living in TX. John T. Duncan was born in Washington Co. TX in 1854; his parents were George J. and Elizabeth (Dallas) Duncan. His father was born 1810 near Louisville, KY, came to TX 1839, settled Washington Co. in March 1851; in 1880 moved to Milam Co. where he resided until his death in 1893. Elizabeth Dallas, born 1829 KY, died 1906; her parents were natives of PA, went from there to KY, then to TX in 1833 near Independence, Washington Co.; her father died in 1834 (MAD: her parents never named). In 1878 John T. Duncan was mayor of La Grange. On 11 Jan. 1881 he married Miss Genelle Harris, daughter of Ben T. Harris of Belleville, TX. The Duncans have three children: Josephine who married Leonard H. Dyer, a lawyer of New York City; Frankie who lives at home; Douglas Duncan, a lawyer at Belleville, married. (MAD: same article on pgs. 2283-2285 in 1916 edition)
1916 "History of TX and Texans" by Frank W. Johnson, Vol.1-5 (SUTRO film 69 reel 2 & 3; CA State Library, Sutro Branch)
Vol.5 pg.2283: JOHN T. DUNCAN -- see pg.1823 of the 1914 edition; same article.
Some early Duncans in Washington Co. TX:
Peter J. Duncan, 1835, had company of men in TX; from TX pension application of George W. Harbour, Washington Co., 2 Jan. 1871, approved, who was in Capt. James Swisher's Co. in 1835 and afterward in Capt. Peter J. Duncan's company; from TX Pension Application file in box 304-59. (pg.153, "Republic of TX Pension Application Abstracts" by John C. Barron (Chairman, Abstracting Committee, Austin Gen. Society), Nan Polk Brady, Emma Gene Seale Gentry, Barbara Langham Goudreau, Iris Higgins Zimmerman; FHL fiche 6,101,694 and book 976.4 M2bj)
Brice P. Duncan, Aug. 1836, veteran of the TX Army, single; from Washington Co. TX Affidavit ("Pioneers of Brazos Co. TX 1800-1850" by W. Broadus Smith, 1962, Houston, TX, library book 976.44S, from Lucille Mehrkam 3/1984; FHL book 976.4242 H2sw and film 982,117 item 6)
Brice P. Duncan, 1836-1837, immigrated to TX between 3/1/1836 and 10/1/1837, had 2nd class grant for land in Milam Co. TX (listed on pg.1093, "Abstract of Titled and Patented Lands Compiled From the Records of the General Land Office of the State of Texas" published in Austin in 1860, and indexed by Paul Campbell; published in Vol.3#2 "Texas Heritage Quarterly," from Lucille Mehrkam 2/1984 and CA State Library, Sutro Branch, book F385 T48) (MAD: 1850 Washington Co. TX census)
Charles R. Duncan, 1836-1837, had Bounty Grant for land in Colorado Co. TX and in Lavaca Co. TX, and 2nd Class Grant for land in McMullen Co. TX for immigrating between 3/1/1836 and 10/1/1837 (listed on pg.332, 924, and 1054, "Abstract of Titled and Patented Lands Compiled From the Records of the General Land Office of the State of Texas" published in Austin in 1860, and indexed by Paul Campbell; published in Vol.3#2 "Texas Heritage Quarterly," from Lucille Mehrkam 2/1984 and CA State Library, Sutro Branch, book F385 T48). Charles R. Duncan received bounty warrant #7090 for 640 acres on 30 Jan. 1839 for service from 6/10 to 12/10/1836, 640 acres were patented to him on 25 May 1847; Patent #134 Vol.1 Abstract 180, GLO file ? 40 ("Bounty and Donation Land Grants of Texas 1835-1888" by Thomas Lloyd Miller, 1967, for service between 1835 and 1846, from records of the TX General Land Office; from Lucille Mehrkam 1984). (MAD: 1850 Washington Co. TX census)
Daniel T. Duncan, 1837, on Washington Co. TX tax roll ("Pioneers of Brazos Co. TX 1800-1850" by W. Broadus Smith, 1962, Houston, TX, library book 976.44S, from Lucille Mehrkam 3/1984; FHL book 976.4242 H2sw and film 982,117 item 6)
John Duncan, 1837, on Washington Co. TX tax roll ("Pioneers of Brazos Co. TX 1800-1850" by W. Broadus Smith, 1962, Houston, TX, library book 976.44S, from Lucille Mehrkam 3/1984; FHL book 976.4242 H2sw and film 982,117 item 6)
James H. Duncan, 1837, on Washington Co. TX tax roll ("Pioneers of Brazos Co. TX 1800-1850" by W. Broadus Smith, 1962, Houston, TX, library book 976.44S, from Lucille Mehrkam 3/1984; FHL book 976.4242 H2sw and film 982,117 item 6)
William Duncan, 1837, on Washington Co. TX tax roll ("Pioneers of Brazos Co. TX 1800-1850" by W. Broadus Smith, 1962, Houston, TX, library book 976.44S, from Lucille Mehrkam 3/1984; FHL book 976.4242 H2sw and film 982,117 item 6)
George J. Duncan, 1837-1840, immigrated to TX between 10/1/1837 and 1/1/1840, had 3rd class grant for land in Colorado Co. TX (listed on pg.332, "Abstract of Titled and Patented Lands Compiled From the Records of the General Land Office of the State of Texas" published in Austin in 1860, and indexed by Paul Campbell; published in Vol.3#2 "Texas Heritage Quarterly," from Lucille Mehrkam 2/1984 and CA State Library, Sutro Branch, book F385 T48) (MAD: 1850 Washington Co. TX census)
Brice P. Duncan, 1838-1840, in Class Two Index, pg.99, for Washington Co. TX Land Applications (pg.26, Vol.8#3, "Roadrunner" (TX) from Lucille Mehrkam 10/1983)
G.J. Duncan, 31 Sept. 1841, in Class Three Index, pg.89, Washington Co. TX Land Certificates; also for J.G. Greenland, pg.89. (pg.22, Vol.3#3, "Roadrunner" (TX) from Lucille Mehrkam 10/1983)
George J. Duncan, 1846, on tax list ("Republic of Texas: Poll Lists for 1846" by Marion Day Mullins, 1974; FHL book 976.4 R4m, from Lucille Mehrkam 1984; and from Ruth Robertson 1983)
Brice P. Duncan, 5 April 1849, mar. G. Crawford. (MAD: Gabriella Crawford, from info of Patrick Hays 7/1999)
George I. Duncan, 1 March 1851, mar. Elizabeth Dallas
P.H. Duncan, 23 April 1867, mar. Mary Dodson
Charles R. Duncan, 20 June 1874, of Milam Co., had TX Pension approved, age 57; in May 1836 he joined Capt. Price's company at Jefferson Co. KY, and was afterwards attached to Gen. Rusk's command; received bounty warrant for 640 acres patented in 1841; J.B. Robertson, Milam Co., knew applicant as a soldier in the service; George J. Duncan, Washington Co., a brother of applicant, affirmed his service; from TX Pension Application file in Box 304-52. (pg.106, "Republic of TX Pension Application Abstracts" by John C. Barron (Chairman, Abstracting Committee, Austin Gen. Society), Nan Polk Brady, Emma Gene Seale Gentry, Barbara Langham Goudreau, Iris Higgins Zimmerman; FHL fiche 6,101,694 and book 976.4 M2bj)
END
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